Local 1291, Int'l Longshoremen's Assn., Etc.

LOCAL 1291, INT'L LONGSHOREMEN'S ASSN., ETC. 735 Local 1291, International Longshoremen's Association, AFL-CIO and Northern Contracting Company. Case No. 4-CD-125-1. May 00, 1965 DECISION AND DETERMINATION OF DISPUTE This is a proceeding pursuant to Section 10(k) of the National Labor Relations Act, as amended, following a charge filed on Novem- ber 23, 1964, by Northern Contracting Company (herein called Northern). The charge was subsequently amended on November 24, 1964. The amended charge alleged that Local 1291, International Longshoremen's Association, AFL-CIO (herein called ILA), had violated Section 8(b) (4) (i) and (ii) (D) of the Act by threatening, coercing, and restraining Northern with an object of forcing North- ern to assign the work of opening and closing hatches to employee members of the ILA rather than to employees belonging to another labor organization. Pursuant to notice, a hearing was held before Hearing Officer Milton S. Maclasky on February 9, 1965. All par- ties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evi- dence bearing on the issues. The rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. Briefs have been filed by Northern and the ILA and have been duly considered by the National Labor Relations Board. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Mem- bers Brown and Jenkins]. Upon the entire record in the case, the Board makes the following findings: 1. The business of the Employer Northern Contracting Company is a Delaware corporation with its offices located at 623 Six Penn Center, Philadelphia, Pennsylvania. Northern operates pier 124 in South Philadelphia. The pier, which is owned by the Pennsylvania Railroad Company, is used solely for the loading of coal aboard vessels. During the past year, Northern's gross receipts were approximately $590,000 and of this sum an amount in excess of $150,000 was derived from the handling and loading of coal on ships destined for ports outside the Commonwealth of Penn- sylvania. We find that Northern is engaged in commerce within the meaning of the Act and that it will effectuate the purposes of the Act to assert jurisdiction herein. 152 NLRB No. 77. 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The labor organizations involved Local 1291, International Longshoremen's Association, AFL-CIO, and the National Maritime Union, AFL-CIO (known herein as NMU), are labor organizations within the meaning of the Act. 3. The dispute a. The work in dispute The work in issue relates to the loading of coal from pier 124 onto the SS Marine Electric, a ship operated by Marine Transport Lines, Inc. Northern's employees operate equipment that loads the ship with coal from railroad cars. In order to prepare the ship to receive coal or move out to sea, it is necessary to open and close the hatches (known as hatch-and-beam work). The Marine Electric is equipped with mechanical hatch covers known as "McGregor" hatches, which are opened by pressing a button, thus causing the hatch to be lifted onto a rail. Each cover is divided into sections which have wheels that are set onto the rail when the hatch is raised. The covers are then pulled back like an accordian by a cable attached to a winch. The hatches are closed by reversing the process. The Marine Electric has five hatches that must be opened for loading. Opening or closing a hatch takes about 10 minutes and is accomplished by two supervising deck officers and a crew of four unlicensed members of the deck depart- ment who have been performing the actual work involved and are represented by the NMU. It is this work, the opening and closing of the hatches, which is the issue in this case. b. Evidence o l conduct violative to Section 8(b)(4)(D) On November 19, 1964, the Marinze Electric docked at pier 124 for the first time for the purpose of taking on coal. In keeping with past practice on the ship, the hatches had been opened before docking by members of the ship's crew. That evening, officials of Northern were approached by two ILA delegates, E. Devine and J. Smith, Jr., who advised that there would be picketing in the event a hatch-and-beam gang were not hired for the ship. After a short discussion, Northern agreed to hire the hatch-and-beam gang. The gang actually per- formed no services since the ship's crew continued to operate the hatches.' The record shows testimony by an NMU agent indicating that NMU did not wish to assert an affirmative claim for the work in issue. He referred to a letter sent by the NMU to the Board on July 30, 1964, in connection with another case involving a similar claim by the ILA for hatch-and-beam work, which was also being performed by NMU members at a different Philadelphia coaldock and for a different IIt is normal practice for hatch -and-beam gangs to be hired at the request of the ship's owner or operator , rather than the operator of the dock as in the instant case. LOCAL 1291, INT'L LONGSHOREMEN'S ASSN., ETC. 737 employer.2 The letter stated that NMU made no claim for the type of work involved herein. However, the same NMU agent also testi- fied that the NMU crewmen had performed the work when ordered to do so and filed no grievances concerning the assignment. c. Applicability of the statute Section 10(k) of the Act empowers the Board to hear and deter- mine the dispute out of which an 8(b) (4) (D) charge has arisen. However, before the Board proceeds, it must be satisfied that there is reasonable cause to believe that Section 8 (b) (4) (D) has been violated. Witnesses for the ILA and Northern differed as to what was actu- ally stated at the meeting of November 19. Northern claims that the delegates threatened to picket by themselves if a crew were not hired immediately. Both Smith and Devine testified that they did not threaten to do this personally, but, rather, advised Northern that they had been contacted by an unidentified member of the Union who told them that no gang had been hired and who threatened to picket if this were not done at once. They did not disavow union responsibil- ity for any picketing or otherwise disassociate the Union from any such action. We, therefore, find it unnecessary to resolve the discrep- ancy in the testimony since, in either case, it was made clear to the Employer that there would be picketing in the event the ILA hatch- and-beam gang were not hired. ILA, nevertheless, contends that no violation has occurred on the, ground that the events of November 19 did not arise from a dispute between two unions or groups of employees regarding the assignment of work. As in the related case of Pocahontas Steamship Company, supra, ILA relies on the NMU statement disclaiming interest in the assignment.3 We find, contrary to the ILA position and for the rea- sons set forth in greater detail in our decision in Pocahontas Steav?.- sltip Company, that the circumstances of this case present a dispute between the ILA and the NMU regarding the assignment of work which establishes the Board's jurisdiction under Section 8(b) (4) (D).4 We, therefore find that the work dispute is properly before, the Board for determination under Section 10(k) of the Act. 2 Pocahontas Steamship Company, 152 NLRB 676. If a jurisdictional dispute is found to exist , ILA asks the Board to award the work to employees that it represents. 4 As the record clearly reveals that the ILA' s demands were designed to force the assignment to its members of work then being performed by members of the deck depart- ment represented by NMU, it is of no moment for the purposes of finding jurisdiction that the pressure was exerted on Northern rather than Marine Transport, the Employer whose employees were then performing the disputed work. It is settled that Section 8 (b) (4) (D) applies to an indirect attempt to force an assignment of work from employees of one employer to those of another . Local 19, International Longshoremen's Associa- tion (Marine Association of Chicago), 151 NLRB 89; Local 3, International Brother- hood of Electrical Workers, AFL--CIO (Western Electric Company, incorporated), 141 NLRB 888. 789-730 -66-vol. 152-48 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD d. Merits of the dispute (1) Skills, competence, and training Members of both the ILA and NMU have the ability to perform the work. Other than a basic knowledge of the operation of the hatch, the work primarily requires the exercise of care to guard against damage to the equipment. As such, it does not demand the applica- tion of the traditional skills developed over the years by the ILA gangs in the manipulation of hatch covers. ILA urges that its hatch- and-beam gangs have worked together for some time so as to become well coordinated teams. However, this factor is balanced by the uncontradicted testimony of Captain Sorensen, a port captain for Marine Transport, to the effect that there has been very little turn- over in the crew of the Marine Electric and that they have satisfac- torily performed this work during each of the more than 100 trips that the ship has made. (2) Collective-bargaining contracts The ILA is a party to a contract with the Philadelphia Marine Trade Association (referred to as PMTA), an association of ships' agents and stevedoring companies serving vessels in the port of Phila- delphia. That contract specifically assigns hatch-and-beam work to the ILA and establishes regulations for its performance. Stevedor- ing firms that perform work at the request of Northern and Marine Transport are members of PMTA. However, neither Northern nor Marine Transport is a party to the PMTA agreement nor any other contract with the ILA. Northern's employees are members of Local 1628, International Longshoremen's Association, AFL-CIO, and are not involved in this matter. Marine Transport, though not a member of the Collier Owners' Association, has adopted the collective-bargain- ing contract between that organization and the NMU covering the unlicensed deck departments of its ships. The contract calls for a monthly base salary and provides for the deck department to per- form a variety of work, including the opening and closing of hatches. (3) Employer's assignment and past practice Marine Transport has always assigned the hatch-and-beam work on the Marine Electric to members of that ship's unlicensed deck depart- ment. On the other hand, the record shows that members of the ILA have performed the hatch-and-beam work on ships in Philadelphia for over 25 years, and a series of arbitration proceedings have consistently awarded them this work. However, no evidence indicates that either Northern or Marine Transport was ever a party to or otherwise par- ticipated in those proceedings so as to be bound by the awards. LOCAL 1291, INT'L LONGSHOREMEN'S ASSN., ETC. 739 (4) Efficiency and economy The work is presently accomplished by a gang consisting of four members of the deck department and two officers who supervise the operation. The ILA-PMTA contract introduced into evidence calls for a gang of six longshoremen and a foreman to perform hatch-and- beam work on coalships. Officers of Marine Transport testified that its crews can open or close a hatch in about 10 minutes. The Marine Electric has five hatches, each of which must be opened and closed in order to accomplish loading or unloading. In the past, the hatches have been opened before the ship has docked and closing has been completed after leaving the pier. CONCLUSION AS TO THE MERITS OF THE DISPUTE An appraisal of the relevant considerations supports the continued assignment of the disputed work to, the employees of Marine Trans- port. In so finding, we note that Marine Transport's assignment con- forms to its past practice, that it will result in efficiency of opera- tions, and that members of the unlicensed deck department have suffi- cient skills to do the work. Accordingly, and on the basis of the entire record, we shall determine the present dispute by deciding that members of Marine Transport's unlicensed deck department repre- sented by the NMU rather than longshoremen represented by the ILA are entitled to the work. The present award is limited to the particular controversy which gave rise to this proceeding. In mak- ing this determination, we are assigning the disputed work to the employees of Marine Transport who are represented by NMU but not to that Union or its members. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and upon the basis of the foregoing findings and the entire record in this proceeding, the National Labor Relations Board makes the following determination of dispute. 1. Employees employed by Marine Transport Lines, Inc., as mem- bers of the unlicensed deck department aboard the SS Marine Electric, are entitled to perform the opening and closing of cargo hatches (hatch-and-beam work) on that ship when docking at pier 124, South Philadelphia, Pennsylvania. 2. Local No. 1291, International Longshoremen's Association, AFL- CIO, is not and has not been entitled, by means proscribed by Sec- tion 8 (b) (4) (D) of the Act, to force or require Northern Contracting Company or Marine Transport Lines, Inc., to assign the above work to its members. 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Within 10 days from the date of this Decision and Determina- tion of Dispute, Local 1291, International Longshoremen's Associa- tion, AFL-CIO, shall notify the Regional Director for Region 4, in writing, whether it will or will not refrain from forcing or requiring, by means proscribed by Section 8(b) (4) (D), the assignment of the work in dispute in a manner inconsistent with the above determination. Michigan State Association of Journeymen & Apprentices of the Plumbing and Pipefitting Industry of the U.S. & Canada, AFL- CIO and Plumbers & Pipefitters Local Union No. 816 of the United Association of Journeymen & Apprentices of the Plumb- ing and Pipefitting Industry of the U.S. & Canada , AFL-CIO and Plumbers & Pipefitters Local Union No. 70 of the United Association of Journeymen & Apprentices of the Plumbing and Pipefitting Industry of the U.S. & Canada, AFL-CIO and Pipefitters Local Union No. 636 of the United Association of Journeymen & Apprentices of the Plumbing and Pipefitting Industry of the U.S. & Canada, AFL-CIO and Plumbers & Pipefitters Local Union No. 85 of the United Association of Journeymen & Apprentices of the Plumbing and Pipefitting Industry of the U.S. & Canada, AFL-CIO and Plumbers & Pipefitters Local Union No. 777 of the United Association of Journeymen & Apprentices of the Plumbing and Pipefitting Industry of the U.S. & Canada, AFL-CIO and Plumbers & Pipefitters Local Union No. 154 of the United Association of Journeymen & Apprentices of the Plumbing and Pipefitting Industry of the U.S. & Canada, AFL-CIO and Plumbers & Pipefitters Local Union No. 388 of the United Association of Journeymen & Apprentices of the Plumbing and Pipefitting Industry of the U.S. & Canada , AFL-CIO and Michigan Dis- tribution Contractors Association, Inc. Cases Nos. 7-CD-99(3), 7-CD-99 (3), 7-CD-99 (4), 7-CD-99 (5), 7-CD-99 (6), 7-CD-99 (7), 7-CD-99 (8), and 7-CD-99 (9). May 20, 1965 DECISION AND ORDER QUASHING NOTICE OF HEARING This is a proceeding under Section 10 (k) of the National Labor Relations Act, as amended, following charges filed by the Michigan Distribution Contractors Association, Inc.,' herein called the Employ- ers, alleging that Michigan State Association of Journeymen & Apprentices of the Plumbing and Pipefitting Industry of the U.S. & i Charging Party' s name, as amended at the hearing. 152 NLRB No. 89.